Litigation: The accidental lobbyist

Your company wants to challenge a regulation or a federal agency’s interpretation of a statute. But maybe you can resolve the matter without litigation, so you call someone you know in the federal agency to set up a meeting. That meeting may lead to another meeting. And therein lies the potential problem.

Although citizens and foreign nationals are free to petition the U.S. government to advocate for their positions on regulations or policy, those planning on making such calls must beware. A call and a meeting—or even two telephone calls—might make you a lobbyist, thereby subjecting you to registration and reporting requirements under the federal Lobbying Disclosure Act (LDA). And if your company or client is a foreign national, particularly if you represent a part of a foreign government, you may have entered the realm of the Foreign Agents Registration Act (FARA), which imposes a separate set of registration and reporting requirements. Penalties for noncompliance can be severe, and defending an action or responding to an investigation can be expensive and time-consuming.

The LDA defines a lobbyist as someone who makes more than one lobbying contact and who spends 20 percent or more of his time on behalf of an employer or a client engaged in lobbying activities in any three-month period. If the prior two requirements are satisfied, lobbying registration is required if a lobbying firm’s compensation in any three month period exceeds or is expected to exceed $3,000, or if an entity employing lobbyists expends or is expected to expend $11,500 on lobbying activities in any three-month period. Although requests for meetings, information and written communications on the record generally do not constitute lobbying contacts, off-the-record communications—both written and oral—might constitute such contacts.

Once registered, lobbying firms and organizations employing lobbyists become subject to the LDA’s reporting requirements, which consist of quarterly reports of lobbying activities, and semiannual reports of political contributions by the organization and by each lobbyist. Registrants must comply with these reporting requirements until formally “terminated” as lobbyists, regardless of whether the organization or individual lobbyists engaged in any lobbying activity during the reporting period, or, if so, whether the amounts or percentages of time devoted to this activity met or exceeded any or all of the registration thresholds in the period covered by the report. The maximum civil penalty for knowing failure to comply with the LDA’s provisions is $200,000, and the act imposes criminal penalties of up to five years imprisonment, fines under the U.S. Criminal Code, or both.

In addition to the LDA implications, employees or representatives of foreign principals who make contacts with U.S. government officials must consider whether such contacts would trigger registration under FARA. Agents of foreign principals, including employees, must register under FARA when they engage in political activities or act as public relations counsel for that foreign principal. “Political activities” are defined as any activity intending or attempting to influence official action by a federal government employee or official or any section of the public within the U.S. with reference to formulating, adopting, or changing the domestic or foreign policies of the U.S. or with reference to the political or public interests, policies or relations of a government of a foreign country or a foreign political party.

FARA contains an exemption from registration under its provisions for agents of foreign commercial entities (as opposed to foreign governments or foreign political parties) that elect to register under the LDA. And, though FARA contains an exemption from registration for persons engaged in legal representation, that exemption generally applies only to contacts made on the record. Thus, an off-the-record contact with a U.S. government official on behalf of a foreign principal attempting to resolve a litigation matter or other dispute could subject to the person making the contact to FARA registration and reporting.

Registrants must file an initial registration statement and then supplemental registration statements twice yearly to report on activities performed for the foreign principal. FARA provides criminal penalties for noncompliance, which can include a fine of up to $10,000 or imprisonment for up to five years, or both, for each violation.